Fan (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking a Subclass 186 Employer Nomination Scheme visa under the Direct Entry stream. The dispute arose after a delegate of the Department of Immigration refused to approve the nomination made by the sponsoring business, APTI Information Technology Pty Ltd. The nominating business subsequently sought merits review of this decision, but the Tribunal dismissed their application due to their failure to attend a scheduled hearing.

The primary legal issue before the Tribunal was whether the applicant was the subject of an approved nomination by the sponsoring business, as required by the Migration Regulations. Specifically, the Tribunal had to determine if the applicant met the criteria under cl.186.233 of the Migration Regulations, which mandates that the nominated position must have been approved by the Minister and not subsequently withdrawn, among other conditions. The Tribunal also considered whether the applicant had provided sufficient information to satisfy these requirements, particularly in light of the nominating business's failed review application and the applicant's lack of response to the Tribunal's request for comments.

The Tribunal reasoned that the nominating business's application for review had been dismissed, meaning the original departmental decision to refuse the nomination stood. Furthermore, the applicant failed to respond to the Tribunal's letter inviting comments on information that could lead to affirming the decision, which included the dismissal of the nominating business's review application. The Tribunal noted that cl.186.233 requires an approved nomination, and the evidence indicated that the nomination made by APTI Information Technology Pty Ltd had been refused and was not subsequently approved. Consequently, the applicant could not satisfy this essential criterion for the Subclass 186 visa in the Direct Entry stream.

The Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.